The case of Kaschke v Gray raises important legal questions for online bloggers regarding how involved a blog owner can afford to be in checking or moderating their blog or parts of it without incurring liability for their users’ allegedly defamatory posts.
In Kaschke v Gray, Johanna Kaschke sued the owner of the website for libel regarding a blog post which claimed she was linked to seventies’ German terrorists and had been arrested on suspicion of being a member of the Baader-Meinhof terrorist group.
The Court had to determine whether the owner of a blogging website could rely on any defence when a visitor to the website posted defamatory comments on his www.labourhome.org multiblog.
The defendant owner of the website argued he had a defence to the accusation of defamation and moved for summary dismissal of the claim before the Court.
He argued that his website qualified for immunity from liability under reg 19 of the Electronic Commerce Regulations (Section 1 2002 No 2013), which provides that a site which falls within the definition of an information society service consisting of the storage of information is eligible for immunity from liability under the hosting safe harbour provisions contained in Article 14 of the Ecommerce Directive (2000/31/EC).
Safe harbour protection is not sacrificed merely because a website is used for activities other than storing information.
However based on the reasoning of the Court in the preliminary hearing, it appears that any form of editorial control, even just checking a piece for spelling, grammar and making corrections, could amount to more than the mere storage of information. This would take the service provider outside the refuge of safe harbour protection, exposing a blog owner to liability for defamatory content appearing on the blog.
The Court seemed to accept the fact that a chat room based on could fall within the definition of the provision of an information society service consisting of the storage of information.
The success of Hilton’s argument hinged on whether the information society service he provided in respect of the information consisted only of and was limited to storage of information.
Hilton, the website owner, conceded that from time to time he identified recommended recent blogs on his political site and may but didn’t always check pieces submitted by authors for spelling and grammar.
A critical issue was whether Mr Hilton edited, amended or altered any of the content or appearance of the post of Mr Gray, the user who had posted the defamatory material regarding Kaschke.
The Court declined to grant Hilton’s preliminary motion. However this does not mean that Hilton will not prevail at trial. The Court wasn’t prepared to grant him a motion to dismiss as the Court couldn’t eliminate the possibility that, under cross-examination, it may be revealed that his hosting of the defamatory post went beyond mere storage of information.
From the commentary of Stadlen J, it is clear that intervention of any kind at any time, whether pre or post-moderation of offensive content, even merely dispassionately correcting spelling may take an information service beyond mere storage and outside the realm of safe harbour immunity.
The case is significant in that the Judge found that the relevant service for the purpose of evaluating the defence was not the website owner’s hosting of all the blogs on his website, rather the hosting of particular information provided by the particular recipient of the service.
The visitor, Mr Gray, who had posted the defamatory information, was unconnected with Hilton, the website owner. Upon receiving a letter from the claimant Kaschke, Hilton immediately removed the offending post the subject of her complaint.
Hilton gave evidence about the way he administered his website. He wrote articles for the website and carried out other tasks such as conducting polls and interviews to be placed on the website. He also tried to secure articles from high profile authors.
The website’s home page had a segment headed ‘recommended’ and a segment headed ‘recent blogs‘ as well as a segment titled ‘top entries‘. When an individual blog post appeared on its own page, it’s title together with the user name of the person who wrote it, and a link to the full text appeared at the top of the recent blogs segment on the home page.
The process by which this occurred was completely automated ,requiring no intervention by the website owner and over the site owner had no influence.
However Hilton conceded that from time to time he considered whether entries on the recommended and recent blogs list were suitable for further promotion. If an item was promoted far more detail was provided about each post on the home page. Hilton said he didn’t generally monitor posts and exercised little editorial control.
Members were free to write articles and he rarely altered anything, although he admitted that he had removed four items which were offensive in content. He did therefore exercise some editorial control over parts of the blog.
If he had exercised no control at all over the material posted on the site or or over the posting in question he would have been easily able to claim that the website as a whole was an information society service consisting only of storage of information.
The Court felt it was necessary to decide whether the Information Society Service in reg 19 was the website as a whole or whether one individual blog post could itself be an information society service. The defendant website owner wouldn’t be entitled to the benefit of the reg 19 defence unless an individual blog post could in and of itself be an information society service.
Stadlen J seemed to lean in favour of holding that an individual blog post could be an information society service and referred to authorities to support this view. Bunt v Tilley  EWHC 406, in which Eady J held that the operator of a newsgroup service able to remove posts was consistent with him being the provider of an information society service.
In Mulvaney v The Sporting Exchange Ltd t/as Betfair the defendant’s betting exchange website included a chat room in which registered customers of Betfair could make comments. The High Court of Ireland held that Betfair’s provision of the chat room consisted of the storage of information by a recipient of a service for the purpose of the defence under Irish law.
In Karim v Newsquest Media Group Ltd  EWHC 3205 QB, a libel action brought against a large media group revolved around the publication of an article on a number of websites and user comments about the article posted to the bulletin boards the defendant hosted. In that case, the Court held the defendant could avail itself of the defence even though the defamatory content appeared on the SAME webpage as the content written or selected by the defendants.
The Court seems to have arrived at a favourable view of Hilton’s defence under the Ecommerce Directive based on the legal discussion, however seemed loathe to strike out the claim on a preliminary motion, at least until it could be established at the trial what degree of editorial control Hilton had actually exercised over the specific blog post the subject of the defamatory complaint.
If Hilton was found to have actually exercised a lot of editorial control over the service it will make it difficult for him to establish that the service he provided consisted purely of the the storage of information.
What emerges from the case, even before it goes to trial, is that a blogger or website owner is in a better position legally if they do nothing at all to moderate their website to mitigate any harm in terms of claiming immunity from liability for infringing user generated content.